Jacobs v. State, 49345

• Decision Date: 26 February 1981
• Docket Number: No. 49345,49345
• Citation: 396 So.2d 1113
• Parties: Eligaah Ardalle JACOBS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 1113

396 So.2d 1113

Eligaah Ardalle JACOBS, Appellant, v. STATE of Florida, Appellee.

No. 49345.

Supreme Court of Florida.

Feb. 26, 1981.

Rehearing Denied May 4, 1981.

Lester Bales, Jr., Zephyrhills, for appellant.

Jim Smith, Atty. Gen., and Charles W. Musgrove, Asst. Atty. Gen., Tallahassee, for appellee.

ADKINS, Justice.

This is a direct appeal from judgments adjudging defendant guilty of murder in the first degree and sentences of death, resulting from a two count indictment. Our jurisdiction vests under Article V, section 3(b)(1), Florida Constitution (1972).

On the evening of March 4, 1974, at approximately 11:00 p. m., the appellant (Jacobs) and three companions, his wife, Thomas Collins, and Elisha Chavis, went to Ed's Country Store in Pasco County intending to rob the store. En route the entire group consumed an undetermined amount of intoxicating beverages.

Upon arriving at the store, Jacobs and Chavis went inside while Jacobs' wife went to the restroom. Collins remained outside near the car. While the robbery was in progress, the caretaker of the store, Grant Ison, reached into his pocket and Jacobs shot and killed him for fear that Ison had a gun. Seconds afterward, Chavis shot and killed the sole other occupant of the store, Barry Marsh, when Marsh approached Jacobs with a large knife. Jacobs and Chavis then left the store taking with them an unspecified amount of beer, cigarettes, and money, which was later divided among the group.

Approximately eight months after the robbery, Jacobs' wife went to Massachusetts where she gave a statement to Lieutenant Richard Coughlin of the Massachusetts State Police setting forth the details of the offense. This information was transmitted to the Pasco County Sheriff's Department and resulted in the arrest of Jacobs, Chavis, and Collins. An indictment was returned charging Jacobs with the two murders. Jacobs was tried and convicted of first degree murder on both counts. He was sentenced to death on each count.

On this appeal Jacobs raises five points as error.

First, Jacobs argues that it was reversible error for the trial judge to refuse to instruct the jury that intoxication may negate the specific intent required to establish the commission of the crime. In the usual case, to be guilty of first degree murder the defendant must not only intend to kill another human being, but in addition the state must prove that the homicide was perpetrated from a premeditated design. In such case intoxication may make the killer incapable of the reflection called for by the requirement of premeditation. But this case is not the usual case of premeditated murder; this case involves application of the felony murder doctrine.

In cases of felony murder the mental element of the offense is that which is required for the felony; premeditation is supplied by the felony. Adams v. State, 341 So.2d 765 (Fla.1976). Thus a defendant charged with first degree felony murder on account of a killing during the commission of a robbery may defend himself on the ground that he was too intoxicated to entertain the intent to rob.

Jury instructions regarding intoxication, however, need not be given in every case in which evidence has been adduced at trial that the defendant consumed alcoholic beverages prior to the commission of the offense. Shaw v. State, 228 So.2d 619 (Fla. 2d DCA 1969). There was evidence that Jacobs had used intoxicating beverages, but there was no evidence that Jacobs was intoxicated. There is no evidence as to the amount of alcohol consumed during the several hours Jacobs drove around prior to the robbery.

In this case the record reveals that the trial judge did not commit reversible error in denying the requested jury instructions. The accomplices' testimony shows that the robbery was carried out from a preconceived plan and, until the shooting erupted, it was successful. Also, the evidence clearly shows that defendant was capable of reflection at the time of the homicides and premeditation was thus proved. This being so, the felony murder evidence was merely cumulative to show premeditation.

Jacobs' second point on appeal is that the 180-day speedy trial rule was violated. Jacobs was taken into custody on November 17, 1974. On February 26, 1975, he filed a motion to suppress certain evidence, which was granted on March 17, 1975. On March 18, 1975, the state sought, and the trial court granted, a continuance to take an interlocutory appeal of the suppression order. Fla.R.Crim.P. 3.191. Successive motions for extensions of time were granted to the state by the trial judge, including a June 11, 1975, extension for a reasonable period of time after the appellate court filed its opinion in the interlocutory appeal. The mandate of the appellate court (reversing and remanding the trial court's order granting the motion to suppress) was received by the trial court on November 6, 1975. Jacobs was brought to trial on February 10, 1976.

Jacobs argues that the trial court's initial extension of time was for 60 days and that, because the subsequent extensions were outside the trial court's jurisdiction during the appeal, the speedy trial rule was violated.

Jacobs is in error. A review of the record reveals that the initial extension of time was not limited to a time certain. The extension was for a reasonable time in which the state could expeditiously pursue the interlocutory appeal. The additional extensions of time were effective because only the trial court, not the appellate court, may grant an extension of the speedy trial time period while an interlocutory appeal is pending. State v. Barnett, 366 So.2d 411 (Fla.1978).

The June 11, 1975, order of the trial court validly extended the time until a reasonable period after the appellate court filed its opinion. As we stated in State v. Jenkins, 389 So.2d 971, 974 (Fla.1980), "(I)f the trial court grants an extension for the period of the appeal plus 'a reasonable period after issuance of the appellate mandate' without specifying the number of days, the time period under rule 3.191(a) is not controlling, and only the constitutional test of reasonableness is applied ...." In the absence of these time limitations, the question of whether a trial date affords defendant a speedy trial must be determined in the light of the circumstances of the particular case as a matter of judicial discretion. The mere lapse of time before trial is not the only factor to be considered under such circumstances. This was the reasoning in State ex rel. Butler v. Cullen, 253 So.2d 861 (Fla.1971), where defendant sought a continuance. This rule is equally applicable when the state seeks a continuance. See King v. State, 303 So.2d 389 (Fla. 3d DCA 1974).

Jacobs' third point on appeal is that one of the members of the grand jury which indicted him was not a qualified elector on the date the indictment was returned, and the indictment is therefore unlawful. The appellant made a timely motion to dismiss the indictment, which was denied, thereby preserving this point for appeal.

Section 40.01, Florida Statutes (1973), provides inter alia that grand jurors "shall be taken from the male and female persons over age of twenty-one years, ... who are fully qualified electors of the respective counties." (Emphasis supplied). The challenged grand juror, although a qualified elector at the time her name was placed on the jury list, was purged from the voter list prior to Jacobs' indictment. Jacobs argues that the participation of this grand juror voids his indictment, citing the case of Kitrol v. State, 9 Fla. 9 (1860), where a grand juror who was determined not to be qualified because over the age of sixty at the time he was summoned for jury duty, rendered the indictment void.

The applicable statute, section 40.01, Florida Statutes (1973), merely requires that the names placed on the jury list "shall be taken" from the voting list. Johnson v. State, 293 So.2d 71 (Fla.1974). The statute does not mandate that the grand juror be on the voting list when an indictment is returned. Appellant's third point is therefore without merit. See also Reed v. State, 292 So.2d 7 (Fla.1974); Jones v. State, 289 So.2d 385 (Fla.1974).

Jacobs' fourth point on appeal is that the imposition of the death penalty in this case would be a denial of equal protection. The Florida statute inflicting capital punishment has been held constitutional. Proffitt v. State, 315 So.2d 461 (Fla.1975), aff'd, Proffitt v. Florida, 482 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976). Jacobs says, however, that the death penalty is unconstitutionally imposed when a co-defendant on similar facts is not sentenced to death. He cites Slater v. State, 316 So.2d 539 (Fla.1975), where we held that the imposition of the death penalty against a defendant convicted a first degree felony murder was unconstitutionally applied where the defendant had been an accomplice and the "trigger man", who had entered a plea of guilty, was sentenced to life imprisonment.

We are not confronted with the situation in which the "trigger man" was sentenced to life and the accomplice improperly sentenced to death, Slater v. State, supra, nor are we confronted with the situation where the accomplice is sentenced to life and the "trigger man" properly sentenced to death, Meeks v. State, 339 So.2d 186 (Fla.1976). Instead, we are confronted with the situation in which there are two "trigger men", one (Chavis), who pleads guilty to second degree murder and is sentenced to life imprisonment, and another (Jacobs), who is convicted of first degree murder in a jury trial and is sentenced to death.

Essentially, appellant's argument is that in case of felony murder involving two "trigger men" it is constitutionally impermissible to allow one "trigger man" to plead guilty and be sentenced to life imprisonment, and allow the second "trigger man" to exercise his right to a jury trial and take his chances that a...